Full Text
HIGH COURT OF DELHI
JUDGMENT
STATE GOVT. OF NCT OF DELHI .....Petitioner
For the Petitioner : Mr. Sunil Kumar Gautam, APP for the
State.
SI Vikas Bhardwaj, PS MS Park.
For the Respondents : Ms. Purnima Maheshwari, Adv. along with
Mr. D.K. Singh, Adv.
1. The present petition is filed challenging the judgment dated 28.09.2019 (hereafter ‘impugned judgment’), passed by the learned Metropolitan Magistrate, Shahdara, Karkardooma Courts, Delhi, in the case arising out of FIR No. 42/2012, registered at Police Station M.S. Park.
2. By the impugned judgment, the learned Trial Court acquitted the accused persons of all the charged offences.
3. The brief facts of the case are that on 07.03.2012, at about 9PM, the accused persons voluntarily caused hurt to the complainant and two more victims by a pointed object and a piece of brick.
4. The accused respondents were charged for the offences under Sections 324/323/34 of the Indian Penal Code, 1860 (‘IPC’). The prosecution examined 10 witnesses, including the three injured witnesses. The complainant, who was examined as PW[1], deposed that the accused persons are her neighbours and on 07.03.2012, the accused Bal Mukund and Sunil came to her residence under the influence of alcohol and started dragging her and beating her with bricks. She alleged that her brother came to the spot along with his friend after hearing her scream and tried to save her. She further alleged that the accused Anil and Sachin also came there carrying pieces of bricks and started beating her, her brother and his friend. She alleged that her mother was pulled out of the house and the accused Sunil gave a blow with the brick on her head. Thereafter, she alleged that the accused Sachin attacked her with a sharp edged object due to which the complainant sustained injuries on her neck and arms. She further alleged that her brother and mother also sustained injuries in the altercation.
5. The learned Trial Court noted in the impugned judgment that the prosecution had failed to prove the charges and acquitted the accused persons. It was observed that there were contradictions in the depositions of the different witnesses. It was further observed that the incident happened in a densely populated area and the complainant had deposed that the neighbours had gathered at the time of the incident, despite which, no neighbour was joined in the investigation or examined as a witness in support of the case of the prosecution.
6. Initially, the present case was numbered as an appeal, whereafter, an application was filed by the State for amendment of the nature of the case to a criminal leave petition along with another application seeking leave to appeal under Section 378(3) of the Code of Criminal Procedure, 1973 (‘CrPC’). This Court by order dated 20.07.2022 had allowed the application for amendment in the interest of justice and directed renumbering of the present case.
7. The learned Additional Public Prosecutor for the State submitted that the learned Trial Court had acquitted the accused persons without application of mind.
8. He submitted that the testimonies of the victims were unduly discarded by the learned Trial Court without appreciating that evidence of injured witnesses has greater evidentiary value. He submitted that categorical allegations had been made by PW[1] to PW[4], who are not only the eye witnesses but also the victims, against the accused persons, and they had correctly identified the accused persons as well.
9. He submitted that minor contradictions in the testimonies of the victims are immaterial and the learned Trial Court gave undue importance to the same.
10. He further submitted that the delay of 681 days in filing the petition was caused on account of the pandemic and due to procedural aspects, and the same ought to be condoned in the interest of justice.
11. Per contra, the learned counsel for the accused respondents submitted that no case is made out by the State for condonation of delay and the present petition ought to be dismissed on the ground of limitation.
12. She submitted that even otherwise, the learned Trial Court has aptly taken note of the discrepancies in the statement of the witnesses and rightly acquitted the accused respondents. She further submitted that the injuries were not corroborated by the deposition of the victims. She submitted that there was no recovery of any sharp-edged weapon from the accused persons either.
13. She submitted that the investigation is not supported by even a single impartial witness even though the incident took place in a very populated place.
ANALYSIS
14. At the outset, it is relevant to note that the present case was filed belatedly and there is an inordinate delay of 681 days in filing of the present petition.
15. It is well settled that each day of the delay is required to be explained. No worthy reasons have been pleaded in the application seeking condonation of delay that would warrant this Court to condone the delay. The relevant portion of the application seeking condonation of delay is as under:
16. The petition was filed on 22.03.2022 and the delay is majorly attributable to the pandemic. Even otherwise, the matter has been pending before this Court since the year 2022 and this Court considers it apposite to appraise the merits of the present case.
17. It is trite law that this Court must exercise caution and should only interfere in an appeal against acquittal where there are substantial and compelling reasons to do so. At the stage of grant of leave to appeal, the High Court has to see whether a prima facie case is made out in favour of the appellant or if such arguable points have been raised which would merit interference. The Hon’ble Apex Court in the case of Maharashtra v. Sujay Mangesh Poyarekar: (2008) 9 SCC 475 held as under:
18. It is essentially the case of the prosecution that the testimony of the victims have not been properly appreciated by the learned Trial Court and the learned Trial Court has given undue deference to minor contradictions in the depositions.
19. While it is settled law that the evidence of an injured eye witness has greater evidentiary value and the same shall not be discarded in view of minor contradictions, it is open to the Court to assess if there are any exaggerations or inherent improbability in the evidence [Ref. Balu Sudam Khalde v. State of Maharashtra: (2023) 13 SCC 365].
20. The learned Trial Court has rightly appreciated that the case of the prosecution is riddled with contradictions and there are contradictions not just in the testimonies of different witnesses, but also in the depositions made by the witnesses at different times. The learned Trial Court has taken note of the discrepancies and observed as under: “(a) PW[1] Meena Tripathi has deposed that IO came in the hospital and made inquiry from her and recorded her statement. However, PW[2] Rajesh Tripthi has deposed that IO recorded statement of all at the hospital on the same day. PW[7] HC Shamim Khas deposed that IO recorded the statement of complainant in my presence who had also deposed that he has not gone to the hospital with IO. PW10 SI Gajender Singh has deposed that he had recorded the statement of injured at their home. (b) FIR is silent about beatings given by accused persons to the Rajesh, Brij Shushan and mother of complainant. There is nothing about injury to anyone else than complainant. However, PW[1] deposed that accused started beating him, his brother and friend of his brother. PW[3] had admitted it to be correct he has not received any injury. PW[3] has further admitted that he had not personally seen the injury on Rajesh Tripathi. PW[3] had also deposed that he does not remember the name of the accused who caused the injury to the Rajesh Tripathi.
(c) The version of Brij Bhushan i.e. PW[3] is totally different with respect to the time when he had returned from the hospital. Though all other persons have allegedly come from the hospital late night at the date of incident itself, however, in his cross examination PW[3] has deposed that he had left the hospital on the next day and went to his home. Though in his chief, PW[3] has admitted that he has not received any injury and also that he had not personally seen the injury on the back of Rajesh Tripathi. PW[3] has further deposed that he does not remember the name of accused who has caused injury to Rajesh Tripathi, though he had identified all the accused persons. PW[3] has not stated anything about the presence & receiving of injury to Maya Devi. From all the above discussion, the possibility of non presence of PW[3] cannot be denied.
(d) PW[4] Smt. Mayadevi has deposed that she alongwith her son
Rajesh Tripathi and his friend Brij Bhushan came at the ground floor. But coming of PW[4] with Rajesh Tripathi and Brijbhushan Tripathi has not been deposed by any other witness. PW[4] had not deposed anything about beating of any one else by the accused persons except beating given to PW[1]. (e) PW[7] Ct. Shamim has submitted that IO ASI Gajender met with the complainant at the spot, however PW10 IO Gajender singh has deposed that when they have reached to the spot, they came to know that injured had already been shifted to the GTB Hospital. (f) PW[7] Ct. Shamim has submitted that IO has left him to the spot for guarding it and went himself to GTS Hospital, however PW10 IO Gajender Singh has deposed that both CT. Shamim and he himself went to the GTS Hospital. (g) AII PWs are unanimous that spot is situated in the densly populated area, however no neighbour has been joined in the investigation nor any neighbour has been examined as witness for supporting the case of the prosecution. In fact, the gathering of neighbours at the time of incident has been admitted by PW[1] in her cross examination. (h) PW[3] Brij Bhushan has deposed IO ASI Gajender and other constable came to the spot before they were taken to the hospital by PCR van, however every other PW has deposed that ASI Gajender reached the spot only when the complainant and other victims were already shifted to GTS Hospital.
(i) IO ASI Gajender has deposed that he alongwith complainant and others had returned to the place of complainant at 12:30am and then recorded the statement of the witnesses/victims and then proceeded alongwith Ct Shamm and complainant in search of the accused. This is again difficult to believe that after 12:30am complainant will go alone in the night with police officials in search of the accused, despite the fact that other family members of complainant were present at house. (j) No neighbour was joined by the IO either at the time of seizing the case property nor at the time of arrest of the accused persons nor any action was taken by the IO as per law against the persons/neighbours who have not joined investigation despite notice.” (emphasis supplied)
21. As rightly noted by the learned Trial Court, PW[1] had deposed that the IO came to the hospital to record her statement, however, PW[7] (Head Constable) deposed that the IO had recorded the complainant’s statement in his presence and he had not gone to the hospital with the IO. Even PW10 SI Gajender stated that he had recorded the statement of the injured at their home. The said discrepancy goes to the very root of the matter and cannot be categorised as minor.
22. It has also come on record that the FIR only mentions that the injuries being caused to one of the victims, whereas in her deposition, PW-1 deposed that the accused not only beat her but also her brother and friend of her brother.
23. As also rightly observed by the learned Trial Court, PW[3] (friend of the complainant’s brother) gave a totally different time of the incident and deposed that he had left the hospital on the next day, although the other victims maintained that they had returned from hospital late at night. He had also deposed that he could not tell the name of the accused who had caused the injuries to PW-2 (brother of the victim) and he had personally not seen the injury.
24. The most relevant aspect which rightly weighed the learned Trial Court was the absence of any independent witnesses, even though the incident took place in a crowded place. It is pertinent to note that initially, in the FIR it was alleged that the injuries were caused only to the complainant, however, later on, it was alleged that injuries were suffered by the complainant, her brother, her mother and her brother’s friend. There are evident substantial embellishments in the case of the prosecution. In the absence of any independent corroboration, considering the multiple discrepancies in the case of the prosecution, the evidence of the victims cannot be said to be entirely trustworthy. In the opinion of this Court, reasonable doubt has been created in favour of the accused persons.
25. It is also pertinent to note that in event of an altercation, the accused persons must have also suffered some injuries as it is only natural that the victims, including the complainant, her brother and his friend, would have tried to defend themselves. Despite the same, the entire case of the prosecution is peculiarly silent on this aspect.
26. This Court does not deem it apposite to go into detail and pen down all the other contradictions that have been taken note of by the learned Trial Court, as the aforesaid factors make it clear that no case is made out for warranting interference.
27. In view of the aforesaid discussion, this Court is of the opinion that the State has not been able to establish a prima facie case in its favour and no credible ground has been raised to accede to the State’s request to condone the delay or to grant leave to appeal in the present case.
28. The leave petition along with the pending application for condonation of delay are dismissed in the aforesaid terms. Other pending application also stands disposed of. AMIT MAHAJAN, J JUNE 9, 2025